Monday, March 30, 2009

Yesterday I put up an introductory post to explain this new series, which I am calling "the 2009 Church Follies." In that post, which I shall reference in each subsequent installment of the series, I explained and documented the enormous sums of money consumed by the Episcopal Church (USA) to stage, once every three years for just ten days, and for $13 million total (heck, that's just $1.3 million per day!), a spectacle of "peace and justice" activism that only incidentally manages to make a few necessary revisions in the canons, updates the liturgical calendar, and fine-tunes another bloated budget for the next triennium along the way. In short, General Convention does not restrain itself. What is worse, there is no one else to restrain General Convention. (Jim Naughton spares no detail in telling us how the activists pull it off.) Nothing will happen until there is a general revolt in the pews against such a sustained and wasteful exercise in political autolatry.

I promised a few sterling examples to prove my point, and so I give you my first one. This is really too easy, like shooting ducks in a barrel. Draft Resolution 2009-A038, proposed by the Standing Commission on Anglican and International Peace with Justice Concerns (I kid you not; check the link for yourself) reads in its self-mocking entirety as follows (I have added the emphasis at the end, just in case you might otherwise be lulled into missing the point---and remember: the 76th General Convention is the upcoming GC 2009, in Anaheim; the 70th General Convention took place eighteen years ago, in 1991):

Resolved, the House of _______ concurring,

That the 76th General Convention reaffirm Resolution 1991-A149:

"Resolved, the House of Deputies concurring, That this 70th General Convention of The Episcopal Church calls on the United States government to render a full accounting of all military assistance and sales of military equipment to all nations in the Middle East, and to develop a plan for reducing the amount of military arms in the entire region, and be it further

"Resolved, That this General Convention urges the President of the United States and the Members of Congress, during this period of de facto annexation of Palestinian land, to develop a policy which requires the State of Israel to account to the Government of the United States for the use of all aid in whatever form that the United States grants to the State of Israel and its instrumentalities, in full compliance with all sections of the Foreign Assistance Act of 1961; and be it further

"Resolved, That this General Convention requests the President of the United States and the Members of Congress to take appropriate steps to ensure that no assistance provided the State of Israel shall be used to cause the relocation of Palestinian people from their homes, nor for new settlements to be located in the occupied areas of the West Bank, Gaza, and East Jerusalem; with further relocations and new settlements to result in the immediate curtailment of aid from the United States."

and to note that the situation of the people living in these lands has tragically deteriorated since its enactment 18 years ago.

[Editors' note: If you do not see both the unintentional humor and the outlandish self-righteousness in this proposed, utterly futile re-enactment of an equally futile and vainglorious resolution of eighteen years ago, then I pronounce you a member of the Church's progressive wing, and as such sentenced to write on the blackboard at least 100 times:

"Abolish the Episcopal Church Standing Commission on Anglican and International Peace with Justice Concerns."

Explanation (if any is needed): If enactment of the resolution in 1991 hasn't had any influence on the situation in eighteen years, there is zero rational expectation that re-enactment of this resolution will have any influence on it now. Remember that insanity may be defined as "repeating exactly the same action over again in the hope of getting a different result." Moreover, the reappearance of the resolution in question proves beyond a reasonable doubt that the Standing Commission in question is unable to read its own mandate.]

Sunday, March 29, 2009

As the Episcopal Church (USA) gears up for its triennial convention, which meets in Anaheim, California, from July 8 to 17, 2009, its Website now has online the text of all the resolutions that have thus far been proposed for adoption. There is a lot that can be learned about the current state of ECUSA from looking through them.

The first thing to realize is that the General Convention of ECUSA comes into existence for just ten days out of every 156 weeks. In other words, it is around for just 0.91% of the time---yet it consumes nearly ten percent of the Church's triennial budget (see page 3). Approximately $13 million is budgeted for the costs of General Convention, including $3.1 million just for the site and facilities (that's $300,000 per day!). Averaged over the ten days of the session, the full cost of keeping General Convention in business comes to over $1,300,000 for each day it is actually in existence.

Recently, the blogs were full of reports about how the 2008 Lambeth Conference wasted £ 288,000 (about $410,000). Well, there are three General Conventions to every one Lambeth Conference. If just 10% of the $13 million spent on General Convention were wasted (and that is the amount of a single, unspecified line item [page 3, line 114, titled "Other Costs"] in GC 2009's budget for facilities), then the Episcopal Church (USA) routinely wastes ten times what a single Lambeth Conference managed to waste; the percentage of just 10% is probably too conservative, given that there is zero accountability for spending too much. (As the 1,560% increase in the line item (#57) for "Title IV & Legal Assistance to Dioceses" shows, ECUSA's solution to overspending is simply to increase the budget.)

Don't forget---we are talking about the fourth largest legislative body in the world,* with a potential membership of 880 lay and clergy deputies (4 of each order per diocese), plus around 300 bishops (both active and retired members currently have seat and vote in the House of Bishops). Since, however, most retired bishops do not bother to attend, and not all dioceses field eight deputies, General Convention 2009 will number just around 1,000 attendees---which means that the Church will be spending approximately $13,000 for each person having a voice at General Convention. Take into account the fact that dioceses pay the costs of travel, meals and lodging for each of those attending, and the figure spent per attendee rises to around $18,000. All this, for the privilege of voting on more than 250 resolutions within the space of ten days (an average of just ten to twelve minutes of debate and discussion per resolution).

And then what happens? Resolutions of General Convention, as we shall have occasion to note more than once in this series of posts, are not binding on anyone---not the individual dioceses, and not the individual bishops. Some of them are supposed to be binding on the staff of General Convention which is charged with carrying them out---but not all, or even very many, resolutions constitute instructions to its staff. Moreover, no sooner are they passed than General Convention packs up and goes home, not to assemble again for three more years. So who "enforces" those resolutions which the staff are supposed to carry out? There is practically no accountability---again, as we shall have ample occasion to observe in this series of posts.

I have sitting on my library shelf a series of big, thick, paper-bound volumes representing the total output of the past ten or so General Conventions. They serve mainly to gather dust. The only times I remember consulting them is on points of historical interest, such as: how did Haiti come to be an official Diocese of the Episcopal Church (USA)? (It's a nice problem for the skilled researcher. The answer, let me assure you, is not by adopting any Constitution or canons which acceded to the ECUSA Constitution and canons, and which were then ratified by General Convention. So much for the argument that such steps are mandatory for a diocese to join the Church.)

At a cost to produce of roughly $13 million per volume in today's dollars, one would think that these would be by far the most valuable books in my library. Unfortunately, no---you can go to a used book website, like AbeBooks.com, type "Journal General Convention Episcopal Church" into the title field, and you will get (currently) 91 results, starting out at just $12 per volume (for the 1961 Journal), and going to a maximum of $125 for the oldest volume (going back to 1785). Was there ever a more monumental disconnect between the money spent on generating ideas and their value after being reduced to paper?

When it comes to such a disconnect, I submit that of all the legislative assemblies in the world, General Convention takes the prize. That is not, of course, what you will see in the official media write-ups about the coming gathering, or in the vast bulk of electronic bytes devoted to the topic. (Remember, however, that the proposed triennial budget for 2010-2012 includes only slightly more for Church "Communications"---$13.5 million---than it does for General Convention itself [scroll to page 10 of 24]. EpiscopalLife Online is not about to bite the hand that feeds it.)

So just what does General Convention do for all the money that is expended on it? Well, there used to be a time when its principal business consisted of drafting national canons to govern the clergy, and approving modifications to the Book of Common Prayer. But over time, as I have detailed in this post, the business of General Convention has grown less and less religious and administrative in character, and more and more purely political in nature.

In short, it will be my contention---which I propose to demonstrate in this series of posts which I am calling "the 2009 Church Follies"---that General Convention has been hijacked by social activists for mostly secular causes. I shall take up a small fraction of the resolutions that are proposed for adoption at GC 2009, and consider them in their particulars, which will be (as a test of your devotion to "the faith once delivered to the saints") painful to contemplate. My purpose is to engender some pain and surprise at what is going on in your name, and at your expense, while you show up faithfully each Sunday for your place in the pews, completely oblivious to the sheer magnitude of such organized folly mounted in the name of Christ's church catholic. I am, needless to say, in total sympathy with the resolution that was proposed but defeated at the recent diocesan convention in South Carolina: to give General Convention a rest for 2009, and to wait until 2012 before calling it together. I would have modified that resolution in just one slight respect: instead of proposing that the savings "be given to a ministry focused on meeting the needs of the poor" and thus support yet another national bureaucracy, I would have proposed that all of the money thus saved, both at the national as well as the diocesan level, be returned to the respective parishes from which it came, in proportion to the contributions made by each of them over the past three years to and through their respective dioceses. God knows that, in these difficult economic times, they would make far better use of it.

So, over the next few weeks, watch for regular installments in this series---"The 2009 Church Follies". The first is almost ready, and will be up tomorrow.

Saturday, March 28, 2009

PLEASE NOTE THE "IMPORTANT UPDATE" BELOW. The date by which to file a petition for review of the California Supreme Court's decision with the U.S. Supreme Court is May 26, 2009, for the reasons explained below.

This will be a post for attorneys and those of a similar bent of mind, who would genuinely like to understand the issues with the California Supreme Court's recent decision in The Episcopal Church Cases, 45 Cal.4th 467 (2009), and how they relate to a possible petition for review at this time to the United States Supreme Court. The decision was originally issued on January 5, 2009. Parties ordinarily have 90 days in which to ask the Supreme Court to review a State court decision. There is an exception if the State court grants a petition for rehearing and modifies its earlier decision; then the 90 days runs from the date of the modification.

In this instance, the defendant parish of St. James, Newport Beach, filed a timely petition for rehearing with the California Supreme Court, asking it to clarify its earlier ruling. The Supreme Court on February 25, 2009 issued an order denying the petition, but nevertheless correcting its decision. It included the express statement at the end: "this modification does not affect the judgment." Although that was its view of the matter, the Court was going out of its way to make it appear as though there was nothing wrong with its earlier judgment. In truth, that judgment was procedurally very much in error, since it had purported to decide the entire case "on the merits"---a phrase used when a court issues a final decision disposing of all the issues presented by the case.

Such a decision, however, was procedurally impossible for it to issue, given the posture of the case as it came before it for review. All that had happened in the trial court was that the Diocese of Los Angeles and the Episcopal Church (USA) had each filed and served their initial complaints on St. James, Newport Beach. The parish had succeeded in having the trial court strike them, on the grounds that they were substantively insufficient (in the case of ECUSA) and improper (in the case of the Diocese). Thus the parish had never filed any kind of answer to the complaints when the case went up on appeal from the decision dismissing those complaints as a matter of law.

The Court of Appeal reversed the orders striking the complaints, and the Supreme Court affirmed the decision of the Court of Appeal (albeit for slightly different reasons). What this meant in practice was that the case had to be returned to the trial court for the parish to answer the complaints. The California Supreme Court unaccountably ignored this basic fact, however, and said it was deciding the case "on the merits". Well, even if you are the Supreme Court of California, you do not get to decide a case on the merits before the other side has had an opportunity to answer the complaint. So the Court was wrong, plainly and simply, and the gracious thing for it to have done would have been to admit its mistake, modify the earlier opinion accordingly, and send it back to the trial court.

But the Court could not bring itself to admit it had committed such an elementary procedural error. In a brief unsigned order (so no one Justice would have to take the blame), the Court pretended to deny the petition for rehearing, changed the minimum language it could get away with, and then concluded: "This modification does not affect the judgment."

In truth, however, the Court had granted the petition for rehearing, which had requested it to make clear that it was not issuing, and could not issue at that point, a final judgment. That is exactly what the court did with its order: it changed certain words in the prior opinion to make it clear that "on this record"---i.e., on the posture of the case as it came before the Court---it was not purporting to decide the merits, but was merely affirming the judgment of the Court of Appeal as to the sufficiency of the complaints---on paper. That meant the case had to go back to the trial court for further proceedings, once the defendants answered the complaints.

But the Court expressly stated, contrary to what the real effect of its order was, that it did not "affect the judgment". In a strictly technical sense, this was correct, since properly interpreted, the earlier judgment simply sent the case back to the trial court for further proceedings. Even where a court misconstrues its own order, the order cannot be read as meaning what the Court has no power to make it say. So in this technical sense, the Court's subsequent order merely recognized what had really been the case all along. And in that sense, accordingly, it did not "modify" what the real judgment had been---or at least was intended to be, once the Court came to realize its mistake.

[IMPORTANT UPDATE 03/31/2009: Earlier I had calculated the deadline for asking for review from the date of the original decision. I am modifying this paragraph, and the next to the last one below, in light of the current text of Rule 13.3 of the Supreme Court Rules, which provides (emphasis added):

The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, or if the lower court appropriately entertains an untimely petition for rehearing or sua sponte considers rehearing, the time to file the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of rehearing or, if rehearing is granted, the subsequent entry of judgment.

Accordingly, if the parish of St. James in Newport Beach wants to ask the Supreme Court to review the decision by California's highest court, it will have to file a "petition for certiorari" on or before May 26, 2009 (90 days from the date the order denying rehearing was filed).]

What grounds could such a petition urge for review? There are several. However, in the interest of keeping the issues understandable, I shall focus on the principal one: the decision by the California Supreme Court violates the establishment clause of the First Amendment, which applies to the individual States by virtue of the Fourteenth Amendment. What the decision does, in essence, is allow "hierarchical" churches to bypass the Statute of Frauds. Let me explain what I mean.

The Statute of Frauds was first enacted by Parliament in 1677, and has been with us ever since. It has a number of different provisions, but the one directly relevant here is the part that says no trust in real property can be created except by a writing signed by the trustor---the person who owns the property in question, and who is deciding to place it in trust. Prior to the Statute of Frauds, courts accepted a witness' hearsay statement that the trustor had verbally declared a trust to exist with respect to his own land, in favor of someone else (usually the witness to the statement). This created, as you might imagine, a huge incentive to commit perjury and fraud on the witness stand. So the Statute of Frauds required that the party claiming the benefit of a trust in land produce a trust deed or similar instrument, signed under oath (i.e., a notarized document, required for recording in most States) by the party owning the land. That way there could be no mistake as to the owner's intent.

The Statute of Frauds was a part of the law of the thirteen original colonies, and after the Revolution was enacted into law in every State---I am not aware of a single State in which there is no statutory descendant of the original. And in every case of which I am aware---including especially California---the local equivalent of the Statute of Frauds applies to the creation of trusts in real property.

It is true that in some States, there are exceptions---whether statutory, or court-created---which allow a trust to be recognized in real property where the conduct of the parties has been proved to indicate that the owner of the land meant to put it into a trust for a particular beneficiary. But such exceptions usually require clear proof of unambiguous conduct to that effect, continuing over a substantial period of time.

With its decision in The Episcopal Church Cases, however, the California Supreme Court held that a national church, which it deemed "hierarchical" in structure based on the only evidence before it---namely, the allegations in ECUSA's complaint that claimed it was hierarchical---could in effect bypass the Statute of Frauds because it was a national, hierarchical church, with presumed hierarchical authority over every single parish in its denomination. Under those circumstances, said the Court, a canon enacted by the church (the Dennis Canon) in 1979 was sufficient to impose a permanent and irrevocable trust on every single Episcopal parish property in the State of California, without any need for individual trust documents to be signed by each of those nearly 500 parishes.

To reach this result, as I explained in this post, the California Supreme Court read a statute that was enacted as a means of trust enforcement to be a vehicle for trust creation---but only in the case of a "hierarchical" church. A congregational church, such as the Baptists, would still have to have each local parish sign a trust deed to impose a trust on its real property. But the Episcopal Church could achieve the same result, under the California statute as the State Supreme Court interpreted it, by simply enacting a single national canon.

By reading the statute in such a fashion, as allowing hierarchical churches to create trusts in local parish properties without complying with the requirements of the California Statute of Frauds, the Supreme Court in effect set up a privileged class of churches in the State, which do not have to obey the same laws as all other churches. This preferential treatment creates a natural ground for review of that decision by the United States Supreme Court.

Under our First Amendment (as applicable to individual States via the Fourteenth Amendment), no State is allowed to enact any law leading to the "establishment" of any church. This can mean that no State is allowed to grant preferential treatment to one church over others. And thus, when it read the California statute as allowing the Episcopal Church (USA) to create a trust in local parish property without having to get that parish's signature on any trust document, but simply by enacting a single national canon (or bylaw), the California Supreme Court was to that extent "establishing" the Episcopal Church in California, in violation of the First Amendment.

The case as decided on January 5 is ripe for review by the United States Supreme Court on this ground, because nothing further has to take place for the ruling of the California Supreme Court to go into effect. Although there still has to be a trial, the Supreme Court's ruling means that if the Episcopal Church (USA) proves the enactment of the Dennis Canon, it will automatically have created thereby a trust in any otherwise unrestricted property owned by the St. James parish. Given that such a construction of the statute would favor the Episcopal Church over all other congregational churches, the question is squarely presented for the United States Supreme Court: does the California Court's upholding of the Dennis Canon via the State statute violate the First Amendment's Establishment Clause?

Thus, watch for a filing by the St. James parish in the United States Supreme Court by May 26, 2009. The mere fact that such a petition is filed, however, will not guarantee that the Supreme Court will agree to review the decision. If it does not accept the case for review at this time, the parish could try again, after the entire case has been tried and affirmed on appeal---but that will be many years down the road. It would be far better for the parties to know before the case goes to trial whether or not the California court interpreted the statute correctly.

If a petition for review is filed, I will follow up on the matter in another post.

Friday, March 27, 2009

This talk, recorded at the TED Conference in 2001, is an enduring classic given by a man universally acknowledged to be one of the greatest coaches ever to have lived. (The string of wins his basketball teams racked up at UCLA is still unmatched.) He started his career as an English teacher, and his love of poetry shines through as he talks---as does also his ability to speak in complete, structured sentences. His simple, direct humility in speaking the truth (and in knowing when he has said enough) is inspiring.

A high-resolution version of the talk is available here. Also, if you enjoyed the talk, you will enjoy reading this interview about him posted on the TED blogsite. Here's an excerpt, to whet your appetite:

How did you first meet Coach Wooden and how did your relationship with him evolve?

It was totally unforeseeable. I interviewed him for another project I was doing that involved talking to the top performers in sports to understand their way of thinking and see how that could be applied elsewhere.

In my mind, he wasn't a big deal. I was more impressed with his players. If you're an average fan, like I was, you don't talk to the bench. I knew he was good, but I didn't go into the interview with any sense of awe. I actually took my dad along, because my dad understood and he was excited.

All of that changed when I met Coach Wooden. He has this combination of great inner strength and great inner youthfulness. As we went on, I got to see much more of what he was about.

When I got back to transcribe the conversation, I realized that every single sentence was fully formed, enlightening and substantive. I just kept re-reading it. And it was about leadership and life, not basketball. He said things like, "Don't forget, Steve, the most important thing a father can do for his children is to love their mother."

Wednesday, March 25, 2009

. . . and I am utterly undone." Thus King Pyrrhus is reported to have replied when a messenger reported that his army had triumphed over the Romans at Asculum, but with a loss of most of his men. And now the Episcopal Church (USA) and the Diocese of Colorado might want to reflect on the fate of King Pyrrhus as they celebrate the decision which Judge Larry Schwatz handed them yesterday.

The usual blogs are quick to shout "victory" in their headlines, but I will wager not many of their authors have actually taken time to read and digest the opinion. And not that I am blaming them---the reasoning is convoluted and strained, and even contradictory at times. First Judge Schwartz says one thing, then he appears to reconsider several pages later, and say the opposite. He begins, for example, by paying lip service to an earlier decision of the Colorado Supreme Court (Bishop and Diocese of Colorado v. Mote, 716 P.2d 85 [Colo. 1986]) which is binding on him, and which upheld in Colorado the law of implied trusts (i.e., trusts not put into writing as such, but implied to exist from the surrounding circumstances and conduct of the parties):

Relying on Jones v. Wolf, the Mote court indicated that a court should rely on "established concepts of trust and property law" in determining whether a trust in favor of the "general church" exists. 716 P.2d at 100. The inquiry is not restricted to a search for explicit language of express trust. "Colorado recognizes that the intent to create a trust can be inferred from the nature of property transactions, the circumstances surrounding the holding of and transfer of property, the particular documents or language employed, and the conduct of the parties" Id. at page 100.

As the plaintiffs have continually urged, the Mote court further stated that "While such an inference is not to come easily - 'clear, explicit, definite, unequivocal and unambiguous language or conduct', establishing the intent to create a trust is required... There is no need to restrict the inquiry ... other principles from the common and statutory law of property, contract, corporation or voluntary associations might be the basis for a determination that a general church has a right, title or interest in the church property, requiring a more extensive inquiry". Id. at p 100 -101 ...

Embarking on the "extensive inquiry" allowed under Mote, Judge Schwartz examines first the history of the relationship between Grace Church and St. Stephens, on the one hand, and the Diocese and the national Church, on the other. He finds in the evidence of that relationship years and years of subordination of the former to the latter, sufficient to create an implied trust under Mote and general principles of trust law:

Looking to current trust law, the Restatement of Trusts 3d, section 22, indicates that in order to create a trust on real property there must be a writing that a) manifests the trust intention, b) reasonably Identifies the trust property, c) reasonably identifies the beneficiaries and d) reasonably identifies the purpose of the trust. The 1923 articles of incorporation, 1929 Instrument of Donation and the conclusions reached in Mote support the finding that a trust for the benefit of the Diocese had been created. Ignoring in this portion of the analysis the impact of the Episcopal Canons, the trust thus created does not vest title in the Diocese upon the departure of Grace Church and St Stephens from the control of PECUSA. Rather, the trust gives the Diocese the right to first approve any property transfer made by Grace Church and St Stephens.

Next, Judge Schwartz traces the complicated evolution of the corporation that held title to the parish property in trust for the Diocese as established first in 1923, and finds that no change in the trust occurred as a result. Having reached that conclusion, he takes up the thorny issue of what he calls the "affect" of the Church Canons on that trust. And this is where his reasoning begins to twist and turn on itself. First, he appears to hold that the Dennis Canon alone was insufficient to impose any trust in and of itself on the parish property under current Colorado law. In support of that point, he notes that most parishioners were unaware of its existence, or of its effect on their property, a view that was confirmed by no less a person than Bishop O'Neill himself (I have added the emphasis):

Application of canon law has always been difficult for secular courts. For one thing, it appears to be rare that parish members, induding members of the governing Vestry, know anything about the details of canon law. In fact, Bishop O'Neil testified that no one expects church members to know much about the canons. That testimony is consistent with what was testified to by lay members of the parish; all of whom said they knew little or nothing about the canons. Thus, when the parish executes a document that pledges fidelity to canon law, it does so without members of the parish having actual knowledge or understanding of what it is that is being adopted.

Now, that is a fine way to run a Church. But Judge Schwartz is not done with the evidence on this point. He continues, and discusses the flaws in how canons come to be (emphasis again mine):

For another, canons are essentially created and imposed unilaterally. They appear always to have been adopted at the National Convention. Once they are adopted, they are imposed on all parishes through publication in the Episcopal Book of Canons [sic---His Honor may be forgiven for not getting this right; few Episcopalians would, either]. Even though the board that recommends changes to canons is made up of representatives from individual parishes, the canons are still ultimately imposed upon individual parishes from the hierarchy of bishops. Application of canon law is based more upon membership in the Episcopal Church than it is upon adoption through a democratic process where all individual church members participate.

Given the unilateral imposition of canons from above, a problem arises with how a trust can be created and imposed via the enactment of a canon. For you see, the doctrine of law known since 1677 by the name "Statute of Frauds" requires that a trust in real property be created only in a writing signed by the owner of the land made subject to the trust. This problem becomes more acute under a so-called "neutral principles" approach to resolving church property disputes, because under such an approach, no one aspect of how title is held is supposed to be paramount over another. A court applying "neutral principles of law" to such a dispute is supposed to be evenhanded in looking at the property deeds, the parish articles and bylaws, and the diocesan and national canons to determine whether a valid trust was created:

The perceptual legal problem with this procedure is the one argued by these Plaintiffs and those in other schism cases: that under a "neutral principles" analysis, it is difficult to understand how unilaterally imposed canons can create a legal trust relationship. While the canons form the basis for govemance within the Episcopal religion, they are usually unknown to all but the clergy and they don't create a trust relationship in the manner one normally comes to expect. Unlike the secular "norm", the canons purport to create a trust through a process that is the opposite of most estate situations. That is, the trust is created by the beneficiary of that trust and is imposed unilaterally on the settlor/trustee.

Judge Schwartz actually gets what is wrong with the whole process of creating a trust on individual parish property through a top-down imposition of the Dennis Canon! (But don't get your hopes entirely up. As we shall later see, he comes to the Church's rescue----or rather, in a classic punting of responsibility to those judges higher up on the pay scale, he reads the Supreme Court as having done the rescuing for him.) Can you be proud of a Church that treats all of its contributors in such a cavalier manner? The Church (at the national level, at least) regards you not as someone whom it must inform, or treat with any courtesy or respect, but as just another source of funds for as long as you are ignorant enough to allow it to control local property matters without your knowledge. For it knows that, should you find out about its ultimate control, you might stop giving money to a church over which you really have no say. And why on earth would you ever give any money for its further expansion?

Having done an excellent job of pointing out the faults in the Church's attempt to bypass individual State law by imposing a nationwide series of thousands of individual trusts through the simple device of adopting a canon, Judge Schwartz considers briefly how other states have resolved the problem. Naturally, he takes up the novel solution recently announced by the California Supreme Court: "Who cares about that old Statute of Frauds? It's the Episcopal Church, isn't it? In this State, it gets to do whatever it wants." He notes, with laconic clarity:

Indeed, California has essentially foreclosed most future church property disputes within its state by conduding in In Re the Episcopal Church Cases, 198 P.3d 66 (Ca. 2009) that "... the general church's canons [referring specifically to the 'Dennis canon'], not instruments of the local church, created the trust." 198 P.3 at 295. In California, adoption by PECUSA of the "Dennis canon" has, for all intents and purposes, ended the inquiry.

So it would seem---at least until the Legislature can get around to resurrecting the Statute of Frauds from its unceremonious burial at the hands of the California Supreme Court. But not so in Colorado---at least for the time being. Judge Schwartz appears to hold, under the prior decisions by which he is bound, that the Dennis Canon is not self-effectuating there, but needs additional support from other documents and conduct of the parties evidencing an intent to impose a trust.

So the Episcopal Church (USA) would at first blush appear to lose on the Dennis Canon in Colorado. Certainly Judge Schwartz' comprehensive summary of the flaws by which it comes into being and then remains hidden at the local level does nothing to advance ECUSA's prospects elsewhere. That is why I say it is a Pyrrhic victory---every time ECUSA has to go into a different State court to enforce its Dennis Canon, it runs the risk of a different interpretation and application under that State's law. Can such a salmagundi of state-law decisions be worth all the millions currently being spent on it?

Again, the question is not for those in the pews to decide---ECUSA is a "hierarchical" Church, remember? (But you might want to take a look at this little primer, if you want to stop the hierarchy from walking all over you.)

Judge Schwartz might have concluded his discussion of the Dennis Canon at this point; after all, he found its enactment and promulgation to be wanting under Colorado implied trust theory. But he just could not let the matter rest there; he wanted to be evenhanded, and divide the baby in half, rather than let it survive intact to the benefit of just one side. So he turns to the United States Supreme Court's decision in Jones v. Wolf, 443 U.S. 595 (1979), for a little assist in bootstrapping the Dennis Canon into another role: not so much as creating a trust independently in and of itself, but as (paradoxically) supplying the element of intent required to support a finding of a trust implied in law.

In doing so, of course, he unnecessarily creates a hurdle for himself---of which he appears to be entirely oblivious, and so finds no difficulty in surmounting. For the "intent" which the law requires for an implied trust to come into being is the intent of the landowner, not the intent of the beneficiary. And it was the Episcopal Church (USA)---the beneficiary of the trust in question---who enacted the Dennis Canon. So despite the "analysis" which I explain in what follows, Judge Schwartz has not found a satisfactory method by which the intent of the parish, which he admits is wholly ignorant of the existence of the Canon, may be implied out of the latter's enactment by the national Church. That does not stop him, as I say, from pulling a rabbit out of his judicial robes. You will have to watch closely how he accomplishes this feat of legerdemain (all emphasis in his original):

The United States Supreme Court in Jones v. Wolf, 443 U.S. 595 (1979) gave what appears to be a simple prescription under "neutral principles" to avoid protracted property litigation with the following language:

At any time before the dispute erupts, the parties can ensure, if they so desire, that the faction loyal to the hierarchical church will retain the church property. They can modify the deed or corporate charter tv include a right of reversion or trust in favor of the general church. Alternatively, the constitution of the general church can be made to recite an express trust in favor of the denominational church. The burden involved in taking such steps is minimal. And the civil courts will be bound to give effect to the result indicated by the parties, provided it is embodied in some legally cognizable form. 443 U.S. at 605

I have commented before, and at length, on this passage from Jones which Judge Schwartz places in bold italics---see this post, and this one. As I shall never tire of pointing out, the passage is nothing but obiter dicta, or "things said [by the court] by the way, or cursorily". It was Justice Blackmun's way of stepping out of his judicial robes for the occasion to give legal advice to the churches on how they could create a trust in their favor. He took this unusual step out of exasperation at the dissent's protest that the "neutral principles" approach which he was expounding would impose a nasty, horrible burden on the poor, defenseless little (hierarchical) churches by making them (horror of horrors) actually go to the trouble of getting their parishes' signatures and consents to the thousands of trusts they wanted to create. But even in stepping out of his robes, Justice Blackmun could not abandon a lawyer's caution and prudence in giving out legal advice. He hedged what he asserted by saying that the trust would still have to be "in legally cognizable form"---that is, it would still have to be in a form to which the courts could give legal effect. (If that sounds like circular reasoning to you, it is because that it is circular.) So in the final analysis, Justice Blackmun's "advice" amounts to a piece of legal nonsense: courts will be bound to recognize a trust you create so long as you put it into a form which they can legally recognize.

But the language in which Justice Blackmun expressed this bit of vacuous fluff is so seductive---after all, even he regarded it as a sufficient response to the dissenters' objection---that it has ended up luring judges all over the country into its little trap. Time and again, they have resorted to it to justify giving "hierarchical churches" a pass on complying with local requirements imposed by the Statute of Frauds. (In doing so, they create a new difficulty by giving preference in the law to a particular type of church, in violation of the First Amendment's prohibition against the government's "establishing" any church.) And unfortunately, Judge Schwartz, aided by the worst kind of self-serving "expert" (i.e., bought and paid for) testimony, proves himself unable to resist the temptation:

The Wolf court did not require that the change to the constitution of the general church be supported by a statute. Nor did they preclude the possibility that such a change to the constitution could stand alone and create a trust. In fact, I found convincing the opinion testimony of the defendants' expert Mr. Chopko that the above language from Wolf was added as a response to criticism by the Court's dissenters. The dissenters argued that any change from the traditional "compulsory deference" approach taken by courts following Watson v. Jones would impose a considerable burden on existing churches to change their constitution, charter and deeds. The dissent maintained that churches would be required to add language of polity to foundational documents or instruments of conveyance and further force the trial courts to decide matters of polity. On the contrary, Mr. Chopko testified that the Wolf majority was emphasizing how minimal the intrusion on church business the "neutral principles" approach would be.

Not the Wolf majority, Mr. Chopko---you are confusing the Court's holding in the case with Justice Blackmun's obiter dicta. No matter how many Justices sign on to it, the character of the passage remains as a judicial aside, unnecessary to the resolution of the case itself, and so not usable as a precedent in any subsequent case. ("Tell it to the judge!" Mr. Chopko replies---"I did, and I persuaded him, so you lose." And thus the law is sold down the river, bit by precious bit, by those who practice it. It is not I who lose, Mr. Chopko, but the law itself---which is to say, you and I together lose the integrity of that which we profess to serve, as a result of your hired flimflamming. And just what is one to think of a judge who allows a hired gun to instruct him in the meaning and interpretation of a Supreme Court decision?)

Now Judge Schwartz is ready to pull the rabbit out. I give an annotated version, so that you can follow the sleight-of-hand:

Taken in the context in which the above quote was made, it is clear

[Ed. note: always watch out when a legal conclusion is preceded by the words "it is clear" or "it is obvious"---they are the verbal equivalent of a magician's attractive assistant, designed to distract you from the trick the magician himself is pulling]

the language must be taken to mean just what it says:

[Ed. note: no it mustn't, because the language itself is circular and meaningless, besides being obiter dicta]

that by merely changing the general churches' constitution, an express trust in favor of the general church can thereby be created.

[Ed. note: Not "merely", Judge Schwartz---what about the requirement that the trust be "in legally cognizable form"? Oh, I see---you're coming to that.]

The Wolf court did not define what it meant when they indicated that the trust language must be "embodied in some legally cognizable form".

[Ed. note: They certainly did not, did they? Shouldn't that be a sign to you that the language was not central to the holding in the case, that it was a mere bagatelle, tossed off to placate the dissent? No? You're actually going to supply the missing definition?]

I conclude that what they meant was that the language cannot be hidden from church members or so intertwined with ecclesiastical matters as to force a court to be making doctrinal decisions.

[Ed. note: Really, Judge Schwartz? Didn't you just conclude a few paragraphs earlier that the language was "hidden from church members"---at least, the ones belonging to the parish? You know, the ones who actually own the land in question?]

With that understanding of the definition I conclude that the canons of the Diocese and ECUSA are "legally cognizable".

[Ed. note: You "conclude"?? You conclude the canons are "legally cognizable" based on the fact that they were not known to the parish itself, and based on your "understanding" that "legally cognizable" means that they were not so hidden, i.e., were out in the open? How do you reconcile those opposites, Judge Schwartz?]

I further conclude that there is no condition precedent to enforcement that the trust created by a change to the constitution be supported by an enabling statute or otherwise contained in foundational documents.

[Ed. note: But, but, but---Judge Schwartz, you just said that the canon was insufficient under Colorado law to establish a trust all on its own. So now you say it doesn't need anything else to be enforceable? I'm afraid I am rather confused by your statements at this point, Your Honor.]

The Mote court did not go so far as to say that the Dennis canon, standing alone, would create a trust, but merely indicated that the canon "did nothing but confirm the relationships existing among PECUSA, the diocese and the parish of St Mary's" 716 P.2d at 105.

[Ed. note: That's what I thought you said earlier.]

While the Mote court did no go so far as to say that adoption of the Dennis Canon would end the inquiry, it is clear

[Ed. note: There he goes again! Watch the magician, not his pretty assistant!]

that the Dennis canon would add additional and considerable weight to the conclusion that a trust for the benefit of PECUSA and the Colorado Diocese had been established. Accordingly, I conclude that the canons impose a much broader trust in favor of the general Episcopal Church, and further they expand the one put in place by the 1923 corporation articles of incorporation and Instrument of Donation.

[Ed. note: They "impose a much broader trust," Judge Schwartz? Are you now saying again that the canons are sufficient in and of themselves to create a trust?---and not just any trust, but a much broader one than the parish itself created when it signed its written donation irrevocably dedicating its property to the purposes of PECUSA in 1929? Pray tell, just what are the terms of that "much broader" trust, and how do you derive them from just the language of the Canons themselves?]

The canons prohibit Grace and St Stephens from disposing of any real or personal property belonging to it without the consent of the Diocese. The canons further impose an obligation on the parish to first obtain consent of the Diocese before "alienating or encumbering" any parish property. The fact that members of the parish Grace Church and St Stephens had no knowledge of the contents of the canons would apparently be of no import to either the Wolf court or the court in Mote.

[Ed. note: "Apparently", Judge Schwartz? What about the protections ensured by the Statute of Frauds, which requires that the knowledge of the parish be evidenced by its signature on the trust? Are you really going to conclude that Wolf and Mote abolished the Statute of Frauds?]

Accordingly, I further conclude that it is of no consequence in this case. One must assume

[Ed. note: "one must assume"---that is another form of linguistic prestidigitation employed by courts to conceal from the audience just who is performing the magic here]

that by becoming a member of a corporate nonprofit that has acceded to Episcopal canons, the member is subject to them all, whether they are known to the member or not. The law of "voluntary associations" would support such a conclusion. See eg.Jorgensen Realty, Inc., v. Box, 701 P.2d 1256, 1257 (Colo. App. 1985).

(Last emphasis added.) So what Judge Schwartz's tortured reasoning comes down to is this:

1. We cannot have trusts created by documents or provisions of which owners are not aware.

2. The owners in this case were definitely not aware of the Dennis Canon.

3. The owners, however, did consent to the imposition of a trust in favor of the Church when they signed an Instrument of Donation dedicating the property to the Church in 1929.

4. Since the property was already subject to a trust when the national Church adopted the Dennis Canon in 1979, I can use that Canon to enhance and expand the effect of the trust that was already in place.

5. As established in 1929, the original trust prevented the parish from alienating the property without the consent of the Bishop of Colorado.

6. As expanded and enhanced by the Episcopal Church (USA) Canons, including the Dennis Canon, the trust from 1979 onward prevented the parish from alienating or encumbering the property without the consent of the Diocese, and required that the property remain in trust for the benefit of both the Diocese and the national Church.

7. Such an expansion of the trust terms occurred despite the ignorance of the parish and vestry of Grace and St. Stephens of the canons which had that effect. Even though Colorado requires a strong and clear showing of intent by the owner of the trust property, the canons certainly show an intent by the trust beneficiary, and that intent, plus the parish's subordination of itself to whatever canons the national Church decided to enact, with or without its knowledge or specific consent, are sufficient to make the expanded trust "legally cognizable" in Colorado courts.

8. Why? Because the United States Supreme Court says so---that's why.

And that is the sum and total of the legal reasoning of Judge Schwartz' decision, as best I can discern after quite a few hours devoted to tearing it apart. Is it, then, a Pyrrhic victory for ECUSA? I would maintain that it is, because despite all the money and effort that went into it, the decision stops short of finding that the Dennis Canon is self-executing in the absence of a prior implied trust established by other means.

Yes, it is true that once you have allowed a trust to come into being on your property, by the words in your parish corporate articles, and in any irrevocable dedication of it you make to church use, then you have no grounds to complain when the national church decides to burden your property further with another canon or two. After all, you signed on in the first place, and so in for a penny, in for a pound. (Besides, I can punt any injustice in so holding up to the Supreme Court---its language allows me so to rule, and hence it will have to be the one to say that it did not mean to void the Statute of Frauds.) Having divided that baby in two, and given both sides something to be grateful for, Judge Schwartz suggests that the parties might want to settle the rest of their claims rather than give him any more infants to carve up:

There remain counter claims against individuals who formerly served as vestry, wardens and rectors of the parlsh. This quiet title order means that trial of those matters can conceivably go forward. However, in an effort to streamline the process before it becomes too involved, I suggest the parties discuss disposition of the remaining claims.

My concerns regarding the remaining claims are as follows: Claims of trespass, theft, conspiracy and the like all revolve around the notion that the offending party had no authority to use the property of another. For instance, to prove civil trespass, the Bishop would have to prove 1. property ownership by the Bishop and 2. intentional trespass. Permission or consent is an affirmative defense. Havlng now heard five weeks of testimony and reviewed in excess of 3,000 documents I am at somewhat of a loss to understand how those claims can be maintained. The parish held legal title to all of the property subject to the Bishop's "equitable" claim of trust. The counterclaim defendants represented the majority of the parish and had a reasonable basis to conclude that they had the absolute right to use the property. That reasonable belief extended up until I entered this order to the contrary.

It is clear that most of the documents relied upon by the defendants in their successful bid for quiet title were discovered only during the course of this litigation. The Instrument of Donation was apparently discovered well after the case was filed. The Bishop admitted that parish members are not expected to know what the canons say. In other words, members of the parish would have little or no reason to know that they didn't have legal authority to remain on the parish property.

I suggest the parties have serious discussion about resolution of the remaining claims. If they cannot be resolved they may file such motions as they deem necessary.

Whether the parties will act on the judge's suggestion may depend on how smoothly the transfer occurs. As of late yesterday, the judge had apparently modified his initial order giving the Diocese the immediate occupancy of the property, which had caused the police to be summoned when the Diocese hired guards to prevent the removal of Church property. Recognizing that the rector and his staff need time to vacate the premises, Judge Schwartz initially extended the move-out date to April 1. The attorney for the defendants asked for yet more time, and both sides were to appear in court to resolve the dispute.

[UPDATE 03/25/2009: Judge Schwartz has now entered an order requiring the current congregation to vacate the church buildings by April 3, and requiring Father Armstrong to vacate the Church rectory by May 8.]

Monday, March 23, 2009

In January, Episcopal Life Online published a series of three opinion pieces on the subject of the lawsuits among Episcopalians over claims to church property. The first, by Church historian Joan Gundersen, argued the proposition that Episcopalians could not be faithful to their forbears if they allowed dissenters to leave and take Church assets with them, even when the dissenters constituted the majority of the parish. The second piece gave the views of the Rev. Timothy Safford, of Christ Church, Philadelphia: drawing lessons from Jesus' parables, he argued that the Church could accommodate the dissenters without alienating them, by allowing them to rent the property (or make the mortgage payments in lieu of rent), and should remain open to the possibility that they will one day return, like the prodigal son. The third piece, by the Rev. George Clifford of North Carolina, argued the Gospel view, and urged the Church to turn the other cheek. If the dissenters wanted to compensate the Church for the property, well and good, but if not, then the Church at least will have been witness to "a costly gift of love."

[UPDATE 03/23/2009: Great minds think alike. While I was composing this post from notes I had made earlier, Canon Kendall Harmon at Titus OneNine has started a lively discussion by posting excerpts from each of the three pieces: read them and the comments here, here, and here. And Baby Blue has chimed in as well, with her own unique, Virginia-based criticism of Dr. Gundersen's misuse of evidence from that State to support her argument from history.]

It is to the credit of Episcopal Life that they published such a wide spectrum of opinion. The ones in the pews who read the pieces and sent in their comments, however, tended on the whole to support Dr. Gundersen rather than the Rev. Clifford. Since the former's rationale is widely expressed (it has also been endorsed by the Presiding Bishop), and since it is a prime example of the fuzzy logic that currently dominates thinking among the Church's liberal leadership, I want to use it as the basis for another of my illustrations of how such thinking serves to widen the gap between liberals and conservatives in the Church today.

(I use the terms "liberals" and "conservatives" with a conscious reference to their counterparts in the political arena, since I have observed that there is a close correlation when it comes to discussing ownership issues. Moreover, the customary terms used on religious blogs, "reappraisers" and "reasserters", while helpful in discussing theological differences, leave out the political dimension that so often comes to the fore in church property disputes.)

Let me begin my illustration by positing a typical Episcopal congregation attending a hypothetical parish, St. Botolph's Church in the Diocese of Pennsylvania. (The name "Boston" is itself a contraction of "Botolph's Town", and there is an actual Church of St. Botolph's there---I do not mean to depict it, but only to borrow its colorful name.) They are made up, let us say for simplicity's sake, of eight members: Tom, Dick, Harry, Paul, Jane, Marge, Linda, and Joan. (Imagine that each name represents not just one person, but, say, an entire contingent of parishioners who think and act as each of those individuals does.) Say that each of them had been worshipping in the parish of St. Botolph's for at least a generation, until the events of General Convention 2003. And let's say, further, that following the confirmation of V. Gene Robinson as a bishop in the Church, three of the members (Dick, Paul and Marge) had decided to leave. Now since St. Botolph's is a church that follows the dictates of the Presiding Bishop and Dr. Gundersen, the dissenters do not try to take any of the property; moreover, they are in the minority. So they move elsewhere and start their own branch of a church that refuses to ordain people in an active same-sex relationship.

Time passes, and in 2006 the bishop of the diocese approves same-sex blessings, which are then performed in our hypothetical church of St. Botolph's. This peels off Linda, and so she leaves. The church carries on as before, but then in 2009 the Diocese elects, and the Church ratifies and ordains, a prominent Unitarian theologian (author of that well-known classic, God Just Is) to be its bishop. As a result of that vote, Harry decides to go elsewhere.

At General Convention 2009, full rites for same-sex marriage are approved on a trial basis. At the same time, the House of Bishops and the House of Deputies vote to reject the draft Anglican Covenant from the Anglican Consultative Council, and vote to increase the requested diocesan assessments from 21% to 30% to cover increasing litigation expenses. The combined result of these measures on our hypothetical St. Botolph's is to drive off Jane. This leaves Tom and Joan as the sole parish contingents remaining from the original group.

Tom is a deputy to the General Conventions of 2012 and 2015, where he proudly supports changes to the Book of Common Prayer to define marriage as a sacrament between any two or more persons who commit themselves to a deep and loving relationship before God. At GC 2015, the deputies and bishops elect a priest who is also a Muslim imam as the new presiding bishop of the Church. He promptly authorizes, on a trial basis, a new liturgical cycle that includes passages personally selected by him from the Holy Qurân, and a new eucharistic service that offers only grape juice instead of wine. (His predecessor had succeeded in obtaining a number of court rulings declaring the Episcopal Church to be "hierarchical", with the Presiding Bishop at the top of the hierarchy.)

Tom enthusiastically supports both measures. However, Joan denounces them, and declares that she can no longer recognize the authority either of General Convention or its Presiding Bishop. Joan also hires a church attorney to assist her, since she believes that her obligation to the many generations of her family who contributed to the support and upkeep of St. Botolph's requires that her contingent retain title to the parish property.

Tom announces that he is the one remaining faithful to the Episcopal Church, not Joan, and asks the parish chancellor to obtain an injunction against Joan's continuing to occupy the parish property. The suit is joined by the Diocese and by ECUSA itself, who both cite the Dennis Canon against Joan; her contingent loses the lawsuit, and has to leave. Tom and his contingent draw up plans to add a minaret to the roof of St. Botolph's, and Tom studies to be a muezzin.

Now can you see the fault in Dr. Gundersen's (and the Presiding Bishop's) fuzzy logic? Under it, the ones who "remain in the Church" are the ones who get to keep the property, because it would be approving theft to let those who depart take it with them. But when there is no constraint on what those who remain in the Church can choose to do---all in the name of "greater inclusivity", to be sure---then there is no constraint on what the Church will become, either. This logic leads inevitably to what is known as a "last man standing" principle: since Tom is the last to remain an "Episcopalian", he gets all the property. (Long ago, Greg Griffith expressed this same idea in another way over at StandFirm.)

To the liberals, I say this: laugh, if you will, at how far-fetched my examples now seem to you. But I ask you then to try to put yourselves in the place of the Rt. Rev. Dr. William White, one of the first bishops and founding fathers of what today still calls itself the Episcopal Church. Listen to what he told a General Convention that assembled in Philadelphia 182 years ago. His prose is dense, in that obsolete fashion of the nineteenth century. I would ask that you read each sentence aloud slowly, as he himself did in addressing the Convention, and savor the depth of meaning that he conveys:

In commencing the business of the Convention, I beg leave to offer to you, my respected brethren, a few observations. I deem it proper, in the first place, to tender to you my acknowledgements for the renewed evidence of your good will afforded by my re-election as President of this honorable body. Permit me, also, to congratulate you on the favorable circumstances under which we are now assembled. The present number of our body, exceeding, perhaps, that of any preceding Convention, affords pleasing proof of the extending limits of our Zion, and of the increasing interest taken by her members in her concerns. The young scion, which was transplanted from the parent stern into this Western wilderness, has taken deep root; it is extending its branches over the land, and beginning to spread its leaves for the healing of the nations. Our ecclesiastical system, in the test which it has given by experiment, has more than realized the expectation of its friends. By its nice adjustment of the balance of liberty and power, and the wise distribution of both among the respective orders, it has accommodated itself, with happy effect, to the genius of our civil institutions, and the habits of a free people; at the same time that it has preserved, in their unbroken integrity, those great principles which are unchangeable, because of Divine origin; and, in all respects, has proved its high adaptation to the purposes of unity and peace, and to all the great ends of its institution.

Among the many causes of congratulation which present themselves, we may reckon not as the least, the harmony which has hitherto attended the deliberations of our General Councils. Amidst great diversity of sentiment on important and delicate topics, the unity of the Church has still been preserved in the bond of peace. Whilst we felicitate ourselves on this retrospect, as the pledge and earnest of the future, let us offer our prayers and efforts, that peace may still dwell within our walls. Difference of opinion, unavoidably incident to human nature, arising from education, association, prejudice and various uncontrolable circumstances, must be expected to keep pace with the increase of our numbers, and to bring, incorporated with them, elements fraught with danger to the best interests of the Church. It is the prerogative of Christian charity, guided by the wisdom that is pure, and peaceable, and easily entreated, to leaven this lump, and to transmute these elements, which, otherwise, by coming in contact with their kindred affinities, would put on the forms of combustion, into sound and wholesome agencies for the general good. Upon us, the members of this General Convention, standing upon a high eminence before the Church and before the world, does it especially devolve, to set an example of Christian politeness and charity; bearing in mind the sentiment of one of our most illustrious of human oracles, that 'the time will come when three words spoken with meekness of spirit, will meet with a far more blessed reward than three thousand volumes written with disdainful sharpness of wit.' In endeavoring to fulfil the part assigned me in the duties before us, I shall rely upon your aid and advice in all matters of difficulty that may arise; appealing to you, also, with confidence for your co-operation in maintaining the rules of order and decorum, as necessary to the dispatch of business, to the dignity of our body, and the honour of religion. And may He, from whom all good counsels and all just works do proceed, direct and prosper all our consultations to the advancement of His glory, the good of His Church, and the salvation of those for whom we are put in trust!

I now ask that you imagine yourself trying to explain to Bishop White all the events that have occurred in the Episcopal Church in the last thirty-three years. He is patient, and will listen, but you will have to go to some lengths before he can comprehend the ordination of women and openly unrepentant, active homosexuals to the episcopate, the blessings of same-sex marriages, the Church's support for abortion, and its welcoming of every sort of faith as an equal, from Wiccans to Druids to Buddhists. He will remind you that the Episcopal Church is a scion of the Church of England, and in his day a reconciliation with the Church of Rome was not considered beyond the realm of discussion. What do these advances, as you call them (he might ask), do to bring such a reconciliation any closer today?

In trying to provide him with a suitable answer to his question, it is my prayer that you would search your heart long and carefully, and reflect upon the path down which the Church is currently headed.

I readily concede that those who are in charge of the Church today may see no great discrepancy between the beliefs that lie behind what Bishop White expressed in 1826 and those that are behind what they put forth as doctrine today. The very fact that they can do so, however, is the clang of the logical trap snapping shut, which serves to make my point. For the constraints --- which they today profess hold them back from any such drastic transformations of the kind I have sketched --- will in time be replaced by yet more lenient ones, and what is optional for the orthodox of today will eventually be prohibited by those who follow, as a new orthodoxy succeeds the previous one. Again, the contrast between what Bishop White believed then and what the Church leaders are practicing now is the only proof of this assertion that I need.

Not all of those in the vanguard of Church liberalism will live to see the day when it will be their turn to be branded as the obstinate ones, who are out of step with contemporary beliefs and "social justice". But for those who do, it will be fitting that then---and only then, when they find themselves at last ostracized by the headlong course of events---will they see the folly of accusing those who chose to remain loyal to an earlier version of orthodoxy, and who sought sincerely to keep for future generations what they had so long fought to uphold and maintain, as engaging in "theft".

Friday, March 20, 2009

This morning's talk from the 2009 TED Conference is by Elizabeth Gilbert, the author of Eat, Pray, Love (2006). In just nineteen minutes, she gives some fascinating insights into what it means (and entails) to be creative:

Wednesday, March 18, 2009

The House of Bishops, having just concluded its spring meeting in North Carolina, has favored us with a pastoral letter. Its rhetoric and tone strike an eery counterpoint to the fiddling that is going on at the national level while America burns, as I have unhappily had to document with this satire---all too much of which is actually true.

The Bishops' letter does not reveal that they had any discussions or concern at their meeting about the fact that the Church's budget proposed for General Convention 2009 at Anaheim this summer is seriously out of kilter. As Mr. Livingston has documented in his admirable "Primer for Those in the Pews", the Church's own treasurer is telling it that a crisis in finances looms---the like of which has not been experienced "since the Great Depression of the 1930s." The Church is facing an anticipated loss of $7.5 million in revenues, but at the same time its Executive Council has approved an increase of 1,560% in the line item for lawsuits. One would think that such a development was worthy of note, or of at least an acknowledgment. Yet while the Bishops' letter duly takes note of these perilous economic times for the country, there is not one word about the questionable priorities currently being pursued by the Church's leadership.

I shall quote portions of the letter below, to show you what I mean. However, in order best to emphasize my point, I want to draw on an ancient literary device exploited to great advantage by the Greek comedic playwright Aristophanes, in the late fifth century B.C. There is a passage in his satiric play The Frogs in which Aristophanes brings on the venerable and classic figure of Aeschylus, one of Greece's foremost tragedians (who had died shortly after Aristophanes was born), in order to ridicule a younger (and more adventuresome) tragedian, Euripides (the author, for example, of The Bacchae and Medea). Aristophanes has Aeschylus complain that all of Euripides' prologues are metrically identical and boring, and to make his point, Aeschylus has Euripides recite lines from the openings of his plays---which Aeschylus each time interrupts and fills out with the annoying (but exactly metrical) phrase "lost his bottle of oil". Here is an example from the play:

EURIPIDES Nonsense; I say my prologues are firstrate.AESCHYLUSNay then, by Zeus, no longer line by lineI'll maul your phrases: but with heaven to aidI'll smash your prologues with a bottle of oil.EURIPIDESYou mine with a bottle of oil?AESCHYLUSWith only one.You frame your prologues so that each and allFit in with a "bottle of oil," or "coverlet-skin,"Or "reticule-bag." I'll prove it here, and now.EURIPIDESYou'll prove it? You?AESCHYLUSI will.DIONYSUSWell then, begin.EURIPIDES"Aegyptus, sailing with his fifty sons,As ancient legends mostly tell the tale,Touching at Argos"AESCHYLUSLost his bottle of oil.DIONYSUSHang it, what's that? Confound that bottle of oil!Give him another: let him try again.EURIPIDES. . .Pooh, pooh, that's nothing. I've a prologueHe'll never tack his bottle of oil to this:"No man is blest in every single thing.One is of noble birth, but lacking means.Another, baseborn,"AESCHYLUSLost his bottle of oil.DIONYSUSEuripides!EURIPIDESWell?DIONYSUSLower your sails, my boy;This bottle of oil is going to blow a gale.EURIPIDESO, by Demeter, I care one bit;Now from his hands I'll strike that bottle of oil.DIONYSUSGo on then, go: but ware the bottle of oil.EURIPIDES"Once Cadmus, quitting the Sidonian town, Agenor's offspring"AESCHYLUS Lost his bottle of oil.DIONYSUSO pray, my man, buy off that bottle of oil,Or else he'll smash our prologues all to bits.

Aristophanes milks the moment even longer, but you get the point. So now, with that introduction, allow me to play Aristophanes with the Bishops' pastoral letter, mutatis mutandis:

BISHOPS

As the House of Bishops gather at the Kanuga Camp and Conference Center for our annual Spring Retreat, we are mindful of the worsening financial crisis around us. We recognize there are no easy solutions for the problems we now face. In the United States there is a 30% reduction of overall wealth, a 26% reduction in home values and a budget deficit of unprecedented proportions. Unemployment currently hovers at over 8% and is estimated to top 10% by the end of the year. There are over 8 million homes in America that are in foreclosure. Consumer confidence is at a 50 year low---

CURMUDGEON

But the lawsuits shall go on.

BISHOPS

Unparalleled corporate greed and irresponsibility, predatory lending practices, and rampant consumerism have amplified domestic and global economic injustice. The global impact is difficult to calculate, except that the poor will become poorer and our commitment to continue our work toward achieving the Millennium Development Goals by 2015 is at great risk---

CURMUDGEON

But the lawsuits shall go on.

BISHOPS

A specter of fear creeps not only across the United States, but also across the world, sometimes causing us as a people to ignore the Gospel imperative of self-sacrifice and generosity, as we scramble for self-preservation in a culture of scarcity---

CURMUDGEON

But the lawsuits shall go on.

BISHOPSThe crisis is both economic and environmental. The drought that grips Texas, parts of the American South, California, Africa and Australia, the force of hurricanes that have wreaked so much havoc in the Caribbean, Central America and the Gulf Coast, the ice storm in Kentucky—these and other natural disasters related to climate change—result in massive joblessness, driving agricultural production costs up, and worsening global hunger. The wars nations wage over diminishing natural resources kill and debilitate not only those who fight in them, but also civilians, weakening families, and destroying the land. We as a people have failed to see this connection, compartmentalizing concerns so as to minimize them and continue to live without regard to the care of God’s creation and the stewardship of the earth’s resources that usher in a more just and peaceful world---

CURMUDGEON

But the lawsuits shall go on.

BISHOPSIn this season of Lent, God calls us to repentance. We have too often been preoccupied as a Church with internal affairs and a narrow focus that has absorbed both our energy and interest and that of our Communion – to the exclusion of concern for the crisis of suffering both at home and abroad. We have often failed to speak a compelling word of commitment to economic justice. We have often failed to speak truth to power, to name the greed and consumerism that has pervaded our culture, and we have too often allowed the culture to define us instead of being formed by Gospel values---

CURMUDGEON

But the lawsuits shall go on.

BISHOPS. . . Everyone is affected by the shrinking of the global economy. For some, this is a time of great loss—loss of employment, of homes, of a way of life. And for the most vulnerable, this “downturn” represents an emergency of catastrophic proportions. Like the Prodigal who comes to his senses and returns home, we as the people of God seek a new life. We recognize in this crisis an invitation into a deeper simplicity, a tightening of the belt, an expanded Lenten fast, and a broader generosity. God’s abundant mercy and forgiveness meet and embrace us, waiting to empower us through the Holy Spirit to face the coming days---

CURMUDGEON

But the lawsuits shall go on.

BISHOPSIn a time of anxiety and fear the Holy Spirit invites us to hope. Anxiety, when voiced in community can be heard, blessed and transformed into energy and hope, but if ignored, swallowed or hidden, fear and anxiety can be corrosive and lead to despair. We Christians claim that joy and hope emerge for those who have the courage to endure suffering. . . . Our current crisis presents us with opportunities to learn from our brothers and sisters of faith in other parts of the world who have long been bearers of hope in the midst of even greater economic calamity---

CURMUDGEON

But the lawsuits shall go on.

BISHOPSWe can also learn from our spiritual ancestors, who found themselves in an economic and existential crisis that endured for forty years – on their journey from Egypt to Israel . . . As we go through our own wilderness, these spiritual ancestors also point the way to a deep and abiding hope. We can rediscover our uniqueness – which emerges from the conviction that our wealth is determined by what we give rather than what we own. . .

CURMUDGEON

But the lawsuits must go on.

(Emphases added at the end.) My Lenten prayer for the Bishops is the collect for the feast of St. Cyril of Jerusalem (d. 386), whose feast we celebrate today (H/T: Father N. J. A. Humphrey at Covenant):

Strengthen, O Lord, the bishops of your Church in their special calling to be teachers and ministers of the Sacraments, so that they, like your servant Cyril of Jerusalem, may effectively instruct your people in Christian faith and practice; and that we, taught by them, may enter more fully into the celebration of the Paschal mystery; through Jesus Christ our Lord, who lives and reigns with you and the Holy Spirit, one God, now and for ever. Amen.

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